On Friday, March 28, 2014, the Ann Arbor’s city clerk staff validated 103 signatures for Bob Dascola’s attempted candidacy to represent Ward 3 on the Ann Arbor city council.
That same day, Dascola filed a lawsuit in the Eastern District of Michigan’s U.S. District Court to assert his right to compete in the Aug. 5 Democratic primary election. [.pdf of March 28, 2014 complaint Dascola v. City of Ann Arbor]
Even though Dascola has more than the required 100 signatures to stand for election, the city clerk previously informed Dascola that he does not meet the city charter eligibility requirements for candidates.
And city clerk records still indicate in red type that Dascola does not meet the eligibility requirements.
The city has two different eligibility requirements for city council candidates. The first requires one year of residency in the ward that a candidate seeks to represent, prior to election. The second requires one year of voter registration in the city of Ann Arbor, prior to election.
Dascola’s lawsuit is based in part on the fact that each of Ann Arbor’s charter requirements were explicitly struck down in federal court in the early 1970s. [Feld v. City of Ann Arbor] [Human Rights Party et al v. City of Ann Arbor]
The complaint indicates that the city apparently believes Dascola doesn’t meet either of the requirements. Dascola contends that he actually meets the city charter’s residency requirement.
Previous coverage from The Chronicle includes: “Dascola to Assert Right to Run in Ward 3.”
The lawsuit, filed on Dascola’s behalf by local attorney Tom Wieder, contends that Dascola has been a Ward 3 resident since about Sept. 15, 2012, which would meet the one-year residency requirement. On that question, the court may need to make a determination as to the facts.
In an application Dascola filled out on Dec. 1, 2013 to be appointed by the city council to a pedestrian safety task force, he checked an item on the application indicating he was not a city resident. [.pdf of Dascola's application to the pedestrian safety task force] That would put him a few weeks outside the city charter’s one-year residency requirement. But on the same form, Dascola seems to indicate a habitual lodging at the Baldwin Avenue address in Ward 3, where he contends he’s been a resident since Sept. 15, 2012: “I walk to work every day from Stadium and Packard area and have to use crosswalk at Baldwin. I have witnessed an accident because a driver wasn’t paying attention and was almost hit by car.”
Under Michigan election law, for purposes of voting and registration, habitual lodging is one way to determine residency:
168.11 “Residence” defined.
Sec. 11. (1) ”Residence”, as used in this act, for registration and voting purposes means that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a person has a residence separate from that of his or her spouse, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act. This section does not affect existing judicial interpretation of the term residence
Also supporting Dascola’s contention of residency at the Baldwin address for a year before the 2014 election is his application for renewal of his barber’s license on Aug. 8, 2013, which gives his Baldwin address. [.pdf of Dascola's barber's license renewal]
Voter Registration Requirement
On the question of voter registration, there does not appear to be any dispute on the facts. Dascola did not register to vote in the city of Ann Arbor until Jan. 15, 2014. So he falls about two months short of the one-year charter requirement on voter registration.
In defending the charter requirements, the city of Ann Arbor is likely to point to a ruling in the Washtenaw County circuit court from 2002 by judge Tim Connors on the Wojack case. However, the ruling from Connors focused on the residency requirement, not the voter registration requirement.
The Wojack case – also handled by Wieder – involved the 2001 candidacy of Republican Scott Wojack to run in Ward 1. Wojack was told he could not run based on the in-ward residency requirement. He was allowed to run. But after the 2001 election, Connors issued an opinion upholding the charter residency requirement. [Wojack v. City of Ann Arbor opinion] In that ruling, upholding the charter’s residency requirement, Connors relied on a 1981 federal court decision: [Joseph v City of Birmingham, 510 F Supp 1319, 1327 (ED Mich 1981)]
Status of Voided Charter Provisions
The complaint filed in federal district court on March 28, 2014 gives some indication of the city’s likely approach to the case, by quoting a March 24 email sent by city attorney Stephen Postema: “[W]e believe that they [city charter requirements] are no longer void in light of subsequent changes in federal and Michigan jurisprudence.” So a key question before the federal district court will likely be whether subsequent rulings in jurisdictions other than Ann Arbor can in some way revive Ann Arbor charter provisions that were explicitly ruled void by a federal court.
The complaint asks the court to enjoin the city permanently from enforcing the city charter provisions on eligibility of candidates for city office. The complaint further asks the court to issue a writ of mandamus directing the city clerk “to accept and process any nominating petitions submitted by [Dascola] and determine his eligibility without regard to the voided provisions of [the city charter].”
In a phone interview on March 29, Wieder indicated he would be filing a motion for summary judgment in the case.
Context of Ward 3 Race
The only other candidate so far to take out petitions to run in the Ward 3 Democratic primary is Julie Grand, who also competed in the August 2013 primary. Incumbent Stephen Kunselman received more votes than Grand in that race.
Kunselman is not up for re-election in 2014, but is running for mayor, along with three other councilmembers: Sabra Briere (Ward 1), Sally Petersen (Ward 2) and Christopher Taylor (Ward 3). Because he cannot simultaneously run for mayor and run to retain his Ward 3 seat on the council, Taylor’s decision to run for mayor will leave that seat without an incumbent on the ballot.
Petitions for the partisan primary in August 2014 must be turned in by April 22. For councilmembers, 100 signatures are required from their ward. For mayor, the requirement is for 50 signatures from each of the city’s five wards, for a total of 250 signatures.
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